ACE Personal Trainer Manual 5th Edition

Chapter 17: Legal Guidelines and Professional ResponsibilitiesLesson 17

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• After completing this session, you will be able to: Compare and contrast the three main types of for-profit business structures Differentiate between independent contractors and employees Discuss the reasons for establishing contracts Discuss and explain negligence and vicarious liability Distinguish between use of legal documents including agreements to

participate, informed consent, and waivers Recognize personal trainer legal responsibilities involving facilities, equipment,

supervision, instruction, and safety guidelines Discuss the scope of practice for an ACE Certified Personal Trainer Define the purpose of professional liability insurance Evaluate legal implications of marketing activities, intellectual property,

transportation, and financing List five primary components of a risk-management protocol

LEARNING OBJECTIVES

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• A personal trainer should regularly consult with an attorney who is aware of the unique laws governing the trainer’s specific city, state, and county.

• Typically, for-profit businesses operate under one of the following structures:Sole proprietorshipPartnershipCorporation

BUSINESS STRUCTURES

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• A business owned and operated by one person• The owner operates the business, and profits

belong to the owner• Financial losses and liabilities are the sole

responsibility of the owner• No corporate veil to shield the actions of the

business from the personal responsibility of the owner

• Potential drawbacks: May be more difficult to raise capital Even with employees, the business often cannot

effectively function without the presence of the owner

Potential decrease in revenue if the owner takes a vacation or time off

SOLE PROPRIETORSHIPS

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PARTNERSHIPS

• Two or more people who agree to operate a business and share profits and losses

• Legal documents establish operational rules and define: The structure for authority The partners’ rights Expected performance and contributions from each partner Buy-out clauses Income distribution Responsibility for debts

• General partnerships – divide ownership equally (50-50) or unequally• Majority partner – owns 50.1% or more; must approve business

decisions• Minority partner – owns 49.9% or less• Limited partner – only liable for direct financial contributions

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CORPORATIONS

• Designed to create a “separate” entity from the investors and operators of a business

• Exist as distinct legal entities and are regulated by state, federal, and international laws

• Investors own shares of the corporation, which limits the investors’ personal liability

• Some of the main corporate structures include: Subchapter S-corporations Limited liability companies (LLC) and

limited liability partnerships (LLP) C-corporations Franchise operation business models

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BUSINESS STRUCTURES

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EMPLOYEE VERSUS INDEPENDENT CONTRACTOR

• Employees: Have an expectation of

consistent, regular work for an employer

Receive compensation on a regular basis

Typically receive training from an employer

Are supervised by an employer

Are taxed for social security and Medicare

May receive unemployment coverage, workers’ compensation coverage, and medical benefits

• Independent contractors: Are most likely hired on a

short-term basis for a specific task or series of tasks

Are compensated at the completion of the job

Choose when or where to work

Typically require no initial or ongoing training

Typically provide their own equipment

Usually service multiple clients

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CONTRACTS

• Contracts ensure that all aspects of a business relationship are properly established.

• The following elements are necessary to create a binding contract: An offer and acceptance with a mutual

agreement of terms Consideration (an exchange of valuable

items, such as money for services) Legality (acceptable under the law) Ability of the parties to enter into a

contract with respect to legal age and mental capacity

• Legal counsel should be consulted to ensure the written form is valid under contract law before it is utilized.

• A document becomes a valid contract when signed by both parties.

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NEGLIGENCE

• Negligence involves failing to perform as a reasonable and prudent person would under similar circumstances.

• A reasonable and prudent person is someone who adheres to the established standard of care: ACE certification indicates that a trainer has

demonstrated an acceptable level of competence and understanding of the established standards.

Since standards of care can and do change, personal trainers must stay abreast of new guidelines.

A negligent act can occur if a trainer fails to act (act of omission) or acts inappropriately (act of commission).

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NEGLIGENCE

• Gross negligence – an action that demonstrates recklessness or a willful disregard for the safety of others

• Contributory negligence – a law preventing a plaintiff from receiving any remuneration if they have played a role in the injury

• Comparative negligence – when multiple parties may have caused injuries, the court will apportion guilt and any subsequent award for damages

• Vicarious liability – employers are responsible for the actions of their employees; an injured party sues not only the employee but also the employer(s)

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NEGLIGENCE

• To substantiate a charge of negligence in court, the plaintiff must establish four elements: The defendant had a duty to protect the plaintiff from

injury The defendant failed to uphold the standard of care

necessary to perform that duty Damage or injury to the plaintiff occurred This damage or injury was caused by the defendant’s

breach of duty (proximate causation)

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AGREEMENTS TO PARTICIPATE

• Designed to protect the trainer from a client claiming to be unaware of the potential risks of physical activity

• Details the nature of the activity, the potential risks to be encountered, and the expected behaviors of the participant

• Demonstrates the client was made aware of the “normal” outcomes of certain types of physical activity and willingly assumed the risks of participation

• Typically utilized for “class” settings (e.g., boot camp) rather than individualized personal-training situations

• Typically are incorporated into other documents such as informed consents or waivers

• May request or require that participants consult with a doctor prior to beginning an exercise program

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INFORMED CONSENT

• Primarily intended to communicate the potential benefits and dangers of the program or exercise testing procedures to the client

• Should detail the possible discomforts involved and potential alternatives

• Demonstrates that a client acknowledges they have been specifically informed about these risks

• This form, combined with verbal communication, prepares the client for the positive and negative effects of certain types of exercise.

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INHERENT RISKS

• Risks that can occur through normal participation in the stated activity

• Agreements to participate and informed consent forms primarily cover the inherent risks of participation in an activity.

• It is difficult to determine an inherent risk of participation and what might have been caused, in whole or in part, by the actions of the personal trainer.

• Personal trainers should have all clients sign a waiver prior to beginning any exercise routine:

Waiver (or release) will typically incorporate similar language included in an agreement to participate and an informed consent form.

Includes an exculpatory clause that bars clients from seeking damages for injuries caused by the inherent risk of activities and by the ordinary negligence of the personal trainer and his or her employees and agents.

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PROCEDURES

• Personal trainers should utilize paperwork to notify new clients of all risks and potential dangers.

• Agreements to participate, informed consent forms, and waivers must be administered properly to clients: Allow the client sufficient time to read,

understand, and ask questions about the document, perhaps in advance.

If the document is multiple pages, provide a space for the client to initial each page.

A minor cannot legally sign a contract; some states allow a parent to sign.

Each member of a family should sign an individual waiver.

• Once the documents have been signed, the retain the paperwork on file.

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LEGAL RESPONSIBILITIES: FACILITIES

• Personal trainers have an obligation to ensure that the physical environment (fitness center, home, outdoors) is free from unreasonable hazards.

• A personal trainer should inspect the following to ensure: The floor surface is appropriate for the

selected activity Sufficient free space is available to protect

the client from other patrons or equipment Sufficient lighting Functional heating and air conditioning

systems or appropriate weather conditions Proximity to drinking fountains and

bathrooms

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LEGAL RESPONSIBILITIES: EQUIPMENT

• All equipment should meet the highest safety and design standards, and be purchased from a reputable manufacturer.

• Equipment must be regularly inspected and properly maintained:

If deemed unsafe, immediately remove the equipment from the area.

If removal is not feasible, disable the equipment to prevent further use.

• Manufacturers typically provide maintenance schedules for equipment:

Regular maintenance should be logged and records retained for future referral in the event of a lawsuit.

• Personal trainers should also note the importance of non-exercise equipment:

Require that proper clothing and shoes be worn by their clients. If outdoors, the trainer should provide water sufficient for the

time, intensity, and temperature during the workout.

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LEGAL RESPONSIBILITIES: SUPERVISION

• Trainers must remember that most personal-training activities require specific supervision for safety purposes: Never leave a client during a session. Eliminate any time that a client is not in direct view. Never leave a client when there is a potential for injury (such as

spotting). With two or more clients, design workouts to alternate between

activities (e.g., spotting a client while the other performs stretching or active rest).

• Additionally, trainers must adequately plan for any emergencies that may arise: Review the facility’s emergency plan. Keep the client’s emergency medical information immediately

available. If training outdoors, check cell phone coverage to ensure that 9-1-1

may be reached if necessary.

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LEGAL RESPONSIBILITIES: INSTRUCTION

• Personal trainers should utilize instructional techniques that are consistent with current professional practices: Legal standards require that clients be given “adequate and

proper” instruction before and during an activity. Avoid high-risk exercises, or those not recommended by peers. Advocating dangerous or controversial exercises puts the trainer

at risk if a client is injured.• Proper instruction also means individualizing workout routines

for each client.• Trainers should insist on proper use of equipment and correct

completion of activities at all times.• Trainers should demonstrate proper instruction by always

using good technique during their own workouts.

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ADDITIONAL SAFETY GUIDELINES

• Be sure that all sessions are well-planned, appropriate, and documented.• Communicate and enforce all safety rules for equipment use.• Ensure that equipment meets or exceeds all industry standards.• Inspect all equipment prior to use and document adherence to

maintenance schedules.• Never allow unsupervised activity by the client.• Limit participation to those under contract (i.e., no friends or family

members).• Clearly warn clients about the specific risks of planned activities.• Only select activities within the defined scope of practice and appropriate

areas of expertise.• Ensure that clients wear any necessary protective equipment.• Review the emergency plan (access to a phone and 9-1-1 for emergency

medical services).• Stay up-to-date with certifications and education in the field.

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SAFETY GUIDELINES

After reviewing the list of additional safety guidelines, do you take all of those steps to ensure the safety of your clients?

If not, why not?

What can you do to improve these practices in your business?

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SCOPE OF PRACTICE

• Trainers must always stay within their scope of practice and recognize situations in which they do not have the necessary expertise:

Never attempt to administer an exercise test without proper training.

Do not provide advice unless a trainer has specific medical or nutritional training and holds professional licenses, credentials, or certifications (e.g., M.D. or R.D.).

Use caution when providing professional advice or a personal opinion that could be taken as professional advice.

Use caution when giving recommendations about equipment, clothing, or shoes.

A trainer should never state, or imitate, that they support their client’s use of supplements, steroids, and growth hormone.

• A trainer should be aware of and follow the exercise program guidelines and position statements by leading professional organizations:

ACE, NSCA, ACOG, ACSM, and AHA

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LIABILITY INSURANCE

• It is the personal trainer’s responsibility to investigate insurance carriers and coverage prior to beginning training sessions.

• Professional liability insurance:Covers personal injuries that can occur as a result of a

training session• Product liability insurance:

Designed to cover a trainer in the event a product fails to perform properly

Every policy should covers the trainer while working in various locations (e.g., fitness center, personal home, client’s home, and outdoors).

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OTHER BUSINESS CONCERNS WITH LEGAL IMPLICATIONS

• Marketing activities: Associate with facilities that maintain high legal and ethical standards. A trainer’s business is related to reputation; avoid being “guilty by

association.”• Intellectual property:

Be aware of copyright violations in regards to music or television broadcasts.

Trainers may seek copyright or trademark protection for their own work, such as routines, books, or a company name or slogan.

• Transportation: Automobile policies may not cover injuries sustained by clients in the

vehicle. • Financing:

Read and understand the fine print of any loan prior to signing and consult with an attorney.

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RISK MANAGEMENT

• Most authorities recommend a protocol that consists of the following steps: Risk identification – instruction, supervision, facilities,

equipment, contracts, and business structure Risk evaluation – review each risk, the probability of

occurrence, and conceivable severity Select the approach for managing risk:

o Avoidance: Eliminate the activityo Transfer: Move the risk to waivers, insurance policies, etc.o Reduction: Modify the risks by removing part of the activityo Retention: Retain the risk; especially if the risk would eliminate a

potential benefit (e.g., no risk without exercise; no benefit either)

o Implementation: Institute the plan o Evaluation: Continually assess the outcome of risk-management

endeavors

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SUMMARY

• A personal trainer: Must always consider various legal and business concerns

in additional to providing quality personalized fitness instruction

Must always be aware of scope of practice and the expected standard of care that should be provided

Should seek the guidance of qualified attorneys who specialize in the fitness industry

Should establish a proper business structure, understand and utilize contracts, know the changing nature of their legal responsibilities, secure proper insurance, and implement a comprehensive risk-management plan

Create a safe and enjoyable environment for clients